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Friday, February 03, 2012

Courts - Banks created "bizarre and complex end-around of the traditional public recording system"

MERS in the spotlight. "New York Sues 3 Big Banks Over Mortgage Database" is the headline to a story from Reuters posted tonight by the NYT. A few quotes:

Attorney General Eric T. Schneiderman of New York sued three major banks on Friday, accusing them of fraud in their use of an electronic mortgage database that he said resulted in deceptive and illegal practices, including false documents in foreclosure proceedings. * * *

The database, called the Mortgage Electronic Registration System or MERS, was created in the mid-1990s for tracking mortgage ownership. * * *

“The mortgage industry created MERS to allow financial institutions to evade county recording fees, avoid the need to publicly record mortgage transfers and facilitate the rapid sale and securitization of mortgages en masse,” Mr. Schneiderman said.

“By creating this bizarre and complex end-around of the traditional public recording system,” Mr. Schneiderman’s lawsuit asserts, the banks saved $2 billion in recording fees.

More than 70 million mortgage loans, including millions of subprime loans, have been registered in the MERS system, rather than in local county clerks’ offices, according to the lawsuit.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Courts in general

Ind. Gov't. - Stories to read while the Charlie White jury is deliberating

Carrie Ritchie in the Indy Star: "Jury deliberating Charlie White's vote-fraud charges."

Charles Wilson of the AP: "Ind. election chief's voter fraud trial nears end."

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Indiana Government

Ind. Decisions - Two 7th Circuit opinions today from Indiana

In Larry Davis v. Kris Ockomon, et al. (SD Ind., Lawrence), a 14-page opinion, Judge Kanne writes:

Larry Davis was terminated from his position as Senior Humane Officer (“SHO”) for the City of Anderson after refusing to support the successful mayoral campaign of Kris Ockomon. Davis brought suit in district court, claiming that the position of SHO was not subject to political termination and that his dismissal violated the First and Fourteenth Amendments. The district court, relying on an official job description, found that the SHO was a policymaking position, and therefore Davis could be dismissed for political reasons. We affirm on the basis that City ordinances authorized the SHO to exercise policymaking discretion. * * *

We find the applicable ordinances vest the SHO with policymaking authority and render political loyalty an appropriate consideration. Therefore, we AFFIRM the judgment of the district court.

In US v. Eller (ND Ind., Miller), an 11-page opinion, Judge Bauer writes:
On August 13, 2009, Gregory G. Eller was indicted for one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1), one count of possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c), and one count of possession of a firearm by an unlawful user of a controlled substance in violation of 18 U.S.C. § 922(g)(3). Eller pleaded guilty to the first and third counts, and not guilty to the second count. A jury convicted Eller on the second count and the court sentenced him to 60 months in prison, to be served consecutively to his sentences for counts 1 and 3, followed by three years of supervised release, and a $300 special assessment. This appeal followed. We affirm.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP)

For publication opinions today (0):

NFP civil opinions today (1):

John D. Jenkins Revocable Living Trust, John D. Jenkins, Trustee v. Peru Utility Service Board, City of Peru and Peru Common Council (NFP)

NFP criminal opinions today (3):

Elmer J. Bailey v. State of Indiana (NFP)

Roslyn Adkins v. State of Indiana (NFP)

Jerry Williams v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on the Supreme Court 2012 - Schedule and applications now posted

Here is the interview schedule.

Here are the photos and applications of the 15 candidates.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Vacancy on Supreme Court 2012

Courts - More on "9th Circuit won't release CA gay marriage trial videos"

Yesterday we learned (ILB entry here) the 9th Circuit won't permit the release of the video of the Prop. 8 trial, but today the WSJ Law Blog has an entry by Joe Palazzolo that begins:

The Proposition 8 trial has already been done on Broadway. Now it’s headed to Tinseltown with a fresh cast, including George Clooney as David Boies (Boies, Schiller & Flexner) and Martin Sheen as Ted Olson (Gibson, Dunn & Crutcher).

The two will read selections from the 2010 trial over California’s voter-mandated gay marriage ban.

The headline: "Clooney Lands Role of a Lifetime: Playing David Boies in ’8′."

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Courts in general

Vacancy on the Supreme Court 2012 - Applicant Information And Interview Times Of Those Seeking Position On High Court?

Interviews scheduled to start next Wednesday. Watching for info to be posted for public review ...

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - "Gibson County attorney convicted of child pornography faces voyeurism charges"

The Jan. 31st COA ruling in William R. Wallace v. State of Indiana is the subject of a story today by Mark Wilson of the Evansville Courier & Press. Some quotes from the long story:

PRINCETON, Ind. — A Gibson County attorney already sentenced for possessing child pornography and obstructing justice can be charged with voyeurism, the Indiana Court of Appeals has ruled.

However, the ruling is unclear in its scope and could have broader legal ramifications, said Scott Danks, the attorney representing William R. Wallace III, in the case.

“My concern with the ruling is that it’s a real slippery slope. This could make it illegal to have security cameras in your house,” Danks said. * * *

The law under which Wallace was charged is often referred to as the peeping statute. It is a misdemeanor but becomes a felony if it is done with a camera.

It is meant to apply to peeping into places where people can be expected to disrobe, not situations of consensual sex in which both people can expect the other will see them naked, Danks said.

“To me, the clear intent of the statute is the peeping. The peeping aspect just doesn’t apply here,” he said.

While neither side has disputed that the recording was made, Danks said the ruling doesn’t distinguish between recording made by security cameras as part of everyday use and situations such as Wallace’s. He said it could affect those who keep security systems inside their own homes to protect against false allegations.

“Wallace’s intent was different. He was recording it for his own pleasure. His intent was different and I think they need to clarify that,” Danks said. “I think they just need to make a distinction.”

The opinion, by a panel of three judges, upheld Penrod’s decision not to dismiss the charge “because the alleged facts, if ultimately proven true, could support a conviction for Class D felony voyeurism.”

The opinion by Judges Cale Bradford and James Kirsch said the voyeurism charge would apply because Wallace turned on the camera — in a laptop computer, according to Danks — before she entered the room and left it running afterward.

In a separate but concurring opinion, Judge Michael Barnes said he was reluctant to agree because of the voyeurism statute’s wording.

“Make no mistake, Wallace’s alleged conduct was hardly chivalrous, and he defines the word cad,” Barnes wrote. “However, the voyeurism statute was drawn primarily to punish persons who peep into bathrooms, locker rooms, dressing rooms and the like.”

But he said the camera Wallace set up did peep. “Although a camera by itself cannot commit a crime, the recording it made permitted Wallace to repeatedly view (the woman) naked and engaging in sex with him. (She) did not consent to being seen naked repeatedly by Wallace,” Barnes wrote.

He said that action fit the General Assembly’s definition of peeping as a “looking of a clandestine, surreptitious, prying or secretive nature.”

the intent of the peeping statute did not fit the consensual nature of the encounter between Wallace and the woman.

See also this ILB entry from Feb. 1st.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Indiana Secretary of State Charlie White declines to testify at his trial"

Here is Carrie Ritchie's story in this morning's Indianapolis Star on yesterday's events in the White election fraud trial. From the story:

[W]hen it came time Thursday for him to tell a Hamilton County jury his side of the story, White passed.

His attorney, former Marion County Prosecutor Carl Brizzi, said the defense would present no evidence or witnesses in White's favor.

It's a risky move, said Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law in Indianapolis, but it might pay off.

Schumm said it's not uncommon, and it sometimes helps defendants win because it can call a jury's attention to the state's lack of evidence.

But, he said, "I think sometimes it can backfire if the jury perceives the state's case as being strong and they don't have anything else to look at."

White could know today whether his risk will be rewarded. Both sides will present their closing arguments this morning, and then the jury will begin deliberating.

That means the jury could reach a verdict today.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Indiana Government

Indd. Courts - "Milwaukee attorney banned from federal courts in Wisconsin, Illinois and Indiana."

The 7th Circuit decision from Feb. 2, 2012 is In Re: Bridget Boyle-Saxton.

Today Bruce Vielmetti of the Milwaukee Journal Sentinel has the story. It begins:

If you're a lawyer, it's never wise to ignore "orders to show cause," especially when they're coming from a federal appeals court.

Milwaukee criminal defense attorney Bridget Boyle-Saxton learned that the hard way Thursday, when the U.S. 7th Circuit Court of Appeals banned her from further practice in the federal courts in Wisconsin, Illinois and Indiana. Boyle handles a significant number of cases in federal court.

"She is unfit to practice law in this court," the court ordered. "Abandonment of a client in a criminal case is reprehensible. Ignoring orders entered by a court is inexcusable. We have disbarred lawyers in similar circumstances."

Boyle-Saxton said Thursday she hadn't seen the order and seemed surprised. She did not respond to a request for comment by the end of Thursday.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Indiana Courts

Ind. Courts - "WLKY Investigates: Paying For Prosecutor’s Problem"

A fascinating story from WLKY.com, Louisville, relating to Floyd County Prosecutor Keith Henderson. Recall that Henderson:

... the lead prosecutor in Camm’s second murder trial had privately signed an agreement to write a book about the case in 2006, shortly after Camm’s conviction.

But the Camm case wasn’t over. His conviction was overturned for a second time.

Defense attorneys seized on Henderson’s book deal.

In 2009, Camm’s attorney, Richard Kammen, announced, “It’s all about the book,” as he filed a motion to appoint a special prosecutor and remove Henderson from the case because of the claim of conflict.

As has been reported in earlier IBL entries, the trial court found no conflict, the COA found there was indeed a conflict, and a transfer petition filed by AG Zoeller is now pending before the Supreme Court.

Now more from the lengthy WLKY story, reported by Duane Pohlman:

While the question of conflict is now before the Indiana Supreme Court, there is another issue the prosecutor faces: an ethics complaint filed with the Indiana Disciplinary Commission, which investigates claims of attorney misconduct.

While the commission cannot confirm there is a complaint, there is plenty of paperwork to show it exists, primarily bills from the prosecutor’s legal team.

That team of attorneys is with Frost Brown Todd LLC, in Indianapolis. Records show they are charging Henderson $375 an hour to deal with the complaint. The total legal bill already totals nearly $10,000.

Last June, Henderson asked for and got the Floyd County commissioners to pay the legal bills associated with the complaint. * * *

"If they made the decision to pay him, that's beyond me,” criminal defense attorney Bart Adams said.

Adams is not associated with the case. WLKY asked him what he thought of the prosecutor getting reimbursed for his legal fees to defend against an ethics complaint.

"He was asking as an individual and not within the scope of his duties, because he was attempting to enrich himself by the selling of this book," Adams said. “Had it been me, I never would have asked for reimbursement."

See the WLKY story for much more.

Posted by Marcia Oddi on Friday, February 03, 2012
Posted to Indiana Courts